Family Law: Shared Residence Orders - Coursework Example

Shared residence orders Introduction: A recent Government published in 20041 identifies the need to address the welfare of children in a changing society where breakdown of relationships is much more common than it was. The traditional role of the mother as caretaker of the children is also being contested as fathers seek a more active role in caring for their children, even after separation2. The Government, in its report cited above, has identified its firm belief that even after separation the children should continue to have meaningful contact with both parents, unless it is expressly contraindicated for safety reasons due to the existence of domestic violence. The major thrust of new legislation introduced through the Children and Adoption Bill 2005 which is derived from the Family Act of 19963 is to promote parental cooperation in ensuring that the child has contact with both parents. However, allowing primary custodial care to one parent – traditionally the mother – has been viewed as a failure of the legal system to ensure the rights of fathers; “an exercise in absolute futility” for fathers, as stated by Justice Mamby in the case of D4. In the case of V v V,5 Bracewell J stated, “Litigation in respect of residence and/or contact is not only de-stabling for parents and children who become a battleground to be fought over at any cost, but it is a process which progressively results in entrenched attitudes as if engaged in a war of attrition.” In many instances, the underlying hostility the parents feel for each other affects the contact arrangements for the children and creates conditions that are not beneficial for them.6 This is the reason why shared residence appears to offer a viable option whereby a child is able to maintain contact with both parents without their mutual animosity affecting the child’s emotional and psychosocial makeup. Moreover, the separated parents may be living with other partners and the facility of shared residence allows each parent to participate in the care of the child while also being able to carry on with their lives and putting the animosity of the former relationship behind them. As a result, shared residence may be viewed as a means to protect the children from the worst effects of separation and the welfare of children is of primary importance, especially as identified in the Children Act of 1989. The concept of shared residence could therefore offer a solution. A child of divorced parents has two homes, one with each parent, such that both parents are able to offer emotional and financial support. Family Courts have traditionally been guided in their decisions by the provisions of the Children Act of 1989, which states that in any provision or decision made by the Courts, “the child’s welfare shall be the Court’s paramount consideration.”7 Section 11(4) of the Children Act of 1989 provides for a Court to make a shared residence order and to take a decision on “the periods during which the child is to live in the different households concerned.” The development of shared residence orders in the courts: District Judge John Mitchell has examined several cases of shared residence, which reveal the changing perspective of the Court on residence orders8. Shared residence in principle, was opposed by judicial authorities, such as for example in the case of Riley v Riley9 where May LJ at the Court of Appeal declared that in his judgment “to keep a child of nearly nine not far off from puberty, going backwards each week between mother and father with no single, settled home is prima facie wrong.” In a similar manner, Purchas LJ10 also opposed the concept of shared residence as a solution in a divorce settlement on the grounds that the setting up of two competing homes is liable to create confusion and stress in a child and would be harmful to the welfare of the child. However, with changing circumstances where there is also a need to protect the rights of the fathers and the animosity between the parents could be harmful for the child, courts have increasingly become receptive to the issue of shared residence orders. In the case of A v A (minors)11, it was pointed out that in view of Sections 8 and 11(4) of the Children Act, the prima facie principle in Riley that shared residence is wrong can no longer be considered valid. However, the opinion of the Court also stated that such orders were to be issued only in unusual circumstances where it would be considered best for the welfare of the child. Where such an order would not be acceptable to a child or in its best interests, it may not be appropriate for a Court so issue such orders, as in the case of Re A (children (shared residence) where the boy refused to live with his mother.12 Similarly, in the case of Re R (children)13 a sole residence order in favor of the mother was granted because she was deemed to be in a better position to satisfy the emotional needs of the children, who were also happier in her care. In the case of Mabon v Mabon14 where there were six children, the question of separate representation of the children was taken up and on appeal, the Court held that the rights of the older children aged 17,15 and 13 was to be upheld in accordance with Rule 9.2A of the Family Proceedings Rules of 1991. Therefore, in so far as shared residence orders are concerned, the most important factor that will be taken into consideration by the Courts in arriving at an arrangement is the welfare of the children and what their wishes are. In the case of D v D (shared residence)15 Hale LJ at the Court of Appeal pointed out that shared residence appeared to show a positive benefit for children since they seemed to be coping well. Therefore such arrangements could be considered by the Courts since it is simply the reality of the lives of children in the present day, who are the product of broken homes. In the case of Re F, the parents were living at some distance from each other, so the Court held that it was not mandatory for shared residence arrangements to consist of time divided equally between both parties.16 However, in the recent case of A v A17, where a shared residence order was made, the question of equality of time provided to children with both parents was an issue. The Court held that that parents are to be considered equal in the eyes of the law, therefore the major thrust for a shared residence order is the facility that is provided for children to spend equal amounts of time with both parents. Difficulties in shared residence: In some cases however, a shared residence order could create problems, such as the facility of equal time being rendered untenable when the parents live at a distance from each other, or when one parents wants to move to a place that is far away, as was the case in Re F. For example, in the case of R v Camden18, the parents live din a council house and a shared residence order was granted. However the Housing Council policy provided for only one main address for dependent children and under judicial review, Davis J pointed out that public housing authorities are not under any obligation to offer additional accommodation on the basis of a shared residence order. Conclusions: Earlier trends in cases of separation were for the Courts to award sole custody of the children to the mothers. However, by allowing a custodial role to the father on par with the mother, the welfare of the children is better served. But in view of the animosity which often exists between former partners, shared residence offers the option for children to spend equal amounts of time with both parents. Therefore, despite the fact that shared residence was initially opposed by judicial authorities, they have evolved over the years to being permissible in unusual circumstances. As of the present, shared residence may be granted when it is deemed to be in the best interests of the children. The Parenting Plan that has been introduced as a part of the Children and Adoption Bill of 2005 is likely to prove beneficial in resolution of disputes, since the focus of the effort will be in involving both parents and ensuring that the best interests of the child are served irrespective of the personal preferences of the parents. Therefore, it is likely that courts will try to introduce shared residency in more cases, to ensure that the child spends equal time with both parents, thereby preventing many of the disputes over preferential treatment for one parent. However, shared residence allowing equal time with both parents is not necessarily an arrangement that may be ordered in every case, since the major conditional factor in separation cases will be to determine what the children themselves want and which arrangement will best serve their welfare, since this is the primary objective of the Children Act of 1989 and recent legislative measures such as the Children and Adoption Bill of 2005 are also geared towards ensuring the welfare of children. Bibliography * Government report titled: “Parental Separation; Childrens Needs and Parents Responsibilities” (2004) CM6273 * Mitchell, John DJ, 2004. “Benchmarks: homing in on shared residence” Law Society Gazette, 101.38(30) * News Report (2005). Bob Geldorf now at the forefront of the campaign for father’s rights. Family Justice. The Independent. [Online] Available at: http://www.parents4protest.co.uk/_private/independent_news_geldof_electoral_battleground.htm * Rivers, Jill, 2006. “Legal update: Family Law” Law Society gazette, 103.12(27) Legislation: * Children Act of 1989 (c.41) [Online] Available at: http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890041_en_2.htm#mdiv1 * Children and Adoption Bill 2005 * Family Act of 1996 Cases: * A v A (shared residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195, * A v A (Minors) (Shared Residence Order) [1994] 1 FLR 669 * D (2004) EWHC 727 (Fam) [Online] Available at: http://www.hmcourts-service.gov.uk/judgmentsfiles/j2466/f-v-m.htm * D v D (shared residence) (2001) 1 FLR 495 * In the matter of D (2004) EWHC 727 (Fam) * Mabon v Mabon [2005] VWCA CIC 634. * R (on the application of Bibi) v Camden LBC [2004] All ER (D) 123 * Re A (Children (Shared Residence) [2001] EWCA Civ 1795; [2002] 1 FCR 177 * Re F (shared residence order) [2003] EWCA Civ 592, [2003] 2 FLR 397 * Re H (a minor) (shared residence) [1994] 1 FLR 717 * Re R (children) (shared residence order) CA 20 April 2005 * Riley v Riley (1986) 2 FLR 429 * V v V (Contact: Implacable Hostility) (Family Division). [2004] 2 F.L.R. 851 Read More